DAVIDSON, Judge.
Appellant was convicted of the crime of rape, and his punishment assessed at death.
Three bills of exception were reserved to the ruling of the court in relation to the admission of testimony. By the first bill it is made to appear that the prosecutrix was permitted to testify, 11 that she told her grandmother, Luz Juarez, when she got home, that a man who followed her, who had a scar on his face, took her and pulled her in the bushes, near where there is a mesquit bush, close to Mr. Lyons’ house, and did bad things to her and hurt her.” By the second bill it is disclosed that the same witness testified: “After I got home, Matías Villareal came to where I was at my grandmother’s, and
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told him that the man whom he saw following behind me with a tin bucket in his hand, and who had a scar on his face, was the man who took me and hurt me; and Matías told me that he knew him well.” The third bill is reserved to the admission of the testimony of the witness Villareal, which was in substance the same as that stated in the second bill of exceptions.
The statement to the grandmother was made in a very few minutes after the act was committed, and the statement to Villareal was made in about one-half hour thereafter, and while the prosecutrix was lying on a bench, hurt and bleeding. In each instance it was objected that it was not competent for the State to prove anything the injured party stated except the fact that she made complaint of the outrage committed upon her, and that it was not proper to admit in evidence any statement she may have made as to who committed the offense, or the facts and particulars attending its commission, other than the fact that the complaint was made. The court, in signing the bills of exceptions, states “that the statements were so closely connected with the acts, bótli as to the time and place, as to be part of the res gestee,” etc.
The law is well settled in this State, where the injured female makes complaint of the fact that she has been ravished, that fact can be proved. It is equally well settled that the particulars of her statement or complaint can not be introduced by the State as original and independent testimony. Such evidence may, however, be introduced in rebuttal in support of her veracity, and for the purpose of establishing the accuracy of her testimony, when her credibility has been attacked by the defendant. Lawson v. The State, 17 Texas Ct. App., 292; Johnson v. The State, 21 Texas Ct. App., 368; Holst v. The State, 23 Texas Ct. App., 1; Pefferling v. The State, 40 Texas, 486; Willson’s Crim. Stats., sec. 915. In this connection it may also be stated that in cases of rape the identity of the accused can not be proved by such statement of the prosecutrix, nor can it be by this means shown who committed the offense. Johnson v. The State, 21 Texas Ct. App., 368.
But these rules are inapplicable when the details of such statement are sought to be proved as res gestee of the transaction. In one instance the details of the complaint can not be used except as corroborating testimony, while in the other it is res gestee, and may be introduced as origi
nal and independent evidence. The question here presented is, was the evidence sought to be excluded properly admitted as res geste of the transaction to which it refers ? The rule authorizing evidence of the detailed statement as res geste is not to be confounded with that which permits evidence that complaint was made, but rejects the details and particulars of such complaint. These rules are widely different, and the distinction is plainly observed and noticed in the authorities. When res gestas, it is original primary testimony, and can be introduced as such, but under the other rule it can only be used as sustaining or corroborative evidence.
Speaking of this difference, Mr. Bishop says: “ On ordinary grounds, anything which the woman said or did of the res gestae of the ravishment will be admissible in evidence; and there is considerable room for strengthening her testimony in this way, especially where she exhibits marks of violence in connection with expressions indicative of her physical condition. But, aside from and beyond this, it is competent to show by her or by others, or both, that, after the alleged rape, especially recently after, she complained of it to suitable persons, and exhibited, if such was the fact, marks of violence and other like indications, as confirmatory of her sworn testimony. It is of special practical importance that the complaint was recent, and explanations of any delay are competent. * * * Neither the particulars of her complaint nor the name of the person whom she mentioned as the offender can by the English and more common American practice thus be given. * * * The effect of this evidence is mainly to sustain the witness; it is not independent proof. If, therefore, the injured female does not appear as a witness, this evidence can not be given. But what is of the res gestee, as stated in the opening of this section, is competent, whether she testified or not.” 2 Bish. Crim. Proc., sec. 936, and notes; also secs. 625, 626, and notes. See also 1 Whart. Crim. Law, sec. 566. This distinction is expressly recognized by this court in Veal’s case, 8 Texas Court of Appeals, 474.
In Regina v. Eyre it is said: “ Whatever she [referring to the prosecutrix] said immediately after the occasion, and what was said to her in answer, is equally evidence.” 2 Fost. & F. Rep., 579. The statement may be made at a time and place so remote from the principal fact as to preclude it as res gestas "of such facts, and yet not exclude it when it is offered for the purpose of showing that the complaint or statement was made. In case it was res gestae, the details of the statement are admissible in evidence; if not res geste, the particulars of such statement can not be introduced. The difference between the rules is distinct and easily comprehended. If the evidence set out in the bills of exception was res gestae, it was clearly admissible; if not res gestae, it should have been excluded. In case of a conviction for an assault with intent to rape, this court has held that it was proper to permit a witness to testify to the
statements of the prosecutrix made with regard to the occurrence, the details of the transaction, her nervous condition, and the swollen appearance and blood upon her wrist. The statement was made a few moments after the occurrence, and it was there said: “These statements of the prosecutrix, and her appearance and condition, were heard and seen by the witness in a very few minutes after the occurrence, and were res gestee.” Lights v. The State, 21 Texas Ct. App., 308.
In Lewis v. The State. 29 Texas Court of Appeals, 201, it is said by this court: “ In order to constitute declarations a part of the res gestee, it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of the principal fact, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence.” See also Foster v. The State, 8 Texas Ct. App., 248; Boothe v. The State, 4 Texas Ct. App., 202; Tooney v. The State, 8 Texas Ct. App., 452; Stagner v. The State, 9 Texas Ct. App., 441; Warren v. The State, Id., 619; Neyland v. The State, 13 Texas Ct. App., 536; Washington v.
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DAVIDSON, Judge.
Appellant was convicted of the crime of rape, and his punishment assessed at death.
Three bills of exception were reserved to the ruling of the court in relation to the admission of testimony. By the first bill it is made to appear that the prosecutrix was permitted to testify, 11 that she told her grandmother, Luz Juarez, when she got home, that a man who followed her, who had a scar on his face, took her and pulled her in the bushes, near where there is a mesquit bush, close to Mr. Lyons’ house, and did bad things to her and hurt her.” By the second bill it is disclosed that the same witness testified: “After I got home, Matías Villareal came to where I was at my grandmother’s, and
I
told him that the man whom he saw following behind me with a tin bucket in his hand, and who had a scar on his face, was the man who took me and hurt me; and Matías told me that he knew him well.” The third bill is reserved to the admission of the testimony of the witness Villareal, which was in substance the same as that stated in the second bill of exceptions.
The statement to the grandmother was made in a very few minutes after the act was committed, and the statement to Villareal was made in about one-half hour thereafter, and while the prosecutrix was lying on a bench, hurt and bleeding. In each instance it was objected that it was not competent for the State to prove anything the injured party stated except the fact that she made complaint of the outrage committed upon her, and that it was not proper to admit in evidence any statement she may have made as to who committed the offense, or the facts and particulars attending its commission, other than the fact that the complaint was made. The court, in signing the bills of exceptions, states “that the statements were so closely connected with the acts, bótli as to the time and place, as to be part of the res gestee,” etc.
The law is well settled in this State, where the injured female makes complaint of the fact that she has been ravished, that fact can be proved. It is equally well settled that the particulars of her statement or complaint can not be introduced by the State as original and independent testimony. Such evidence may, however, be introduced in rebuttal in support of her veracity, and for the purpose of establishing the accuracy of her testimony, when her credibility has been attacked by the defendant. Lawson v. The State, 17 Texas Ct. App., 292; Johnson v. The State, 21 Texas Ct. App., 368; Holst v. The State, 23 Texas Ct. App., 1; Pefferling v. The State, 40 Texas, 486; Willson’s Crim. Stats., sec. 915. In this connection it may also be stated that in cases of rape the identity of the accused can not be proved by such statement of the prosecutrix, nor can it be by this means shown who committed the offense. Johnson v. The State, 21 Texas Ct. App., 368.
But these rules are inapplicable when the details of such statement are sought to be proved as res gestee of the transaction. In one instance the details of the complaint can not be used except as corroborating testimony, while in the other it is res gestee, and may be introduced as origi
nal and independent evidence. The question here presented is, was the evidence sought to be excluded properly admitted as res geste of the transaction to which it refers ? The rule authorizing evidence of the detailed statement as res geste is not to be confounded with that which permits evidence that complaint was made, but rejects the details and particulars of such complaint. These rules are widely different, and the distinction is plainly observed and noticed in the authorities. When res gestas, it is original primary testimony, and can be introduced as such, but under the other rule it can only be used as sustaining or corroborative evidence.
Speaking of this difference, Mr. Bishop says: “ On ordinary grounds, anything which the woman said or did of the res gestae of the ravishment will be admissible in evidence; and there is considerable room for strengthening her testimony in this way, especially where she exhibits marks of violence in connection with expressions indicative of her physical condition. But, aside from and beyond this, it is competent to show by her or by others, or both, that, after the alleged rape, especially recently after, she complained of it to suitable persons, and exhibited, if such was the fact, marks of violence and other like indications, as confirmatory of her sworn testimony. It is of special practical importance that the complaint was recent, and explanations of any delay are competent. * * * Neither the particulars of her complaint nor the name of the person whom she mentioned as the offender can by the English and more common American practice thus be given. * * * The effect of this evidence is mainly to sustain the witness; it is not independent proof. If, therefore, the injured female does not appear as a witness, this evidence can not be given. But what is of the res gestee, as stated in the opening of this section, is competent, whether she testified or not.” 2 Bish. Crim. Proc., sec. 936, and notes; also secs. 625, 626, and notes. See also 1 Whart. Crim. Law, sec. 566. This distinction is expressly recognized by this court in Veal’s case, 8 Texas Court of Appeals, 474.
In Regina v. Eyre it is said: “ Whatever she [referring to the prosecutrix] said immediately after the occasion, and what was said to her in answer, is equally evidence.” 2 Fost. & F. Rep., 579. The statement may be made at a time and place so remote from the principal fact as to preclude it as res gestas "of such facts, and yet not exclude it when it is offered for the purpose of showing that the complaint or statement was made. In case it was res gestae, the details of the statement are admissible in evidence; if not res geste, the particulars of such statement can not be introduced. The difference between the rules is distinct and easily comprehended. If the evidence set out in the bills of exception was res gestae, it was clearly admissible; if not res gestae, it should have been excluded. In case of a conviction for an assault with intent to rape, this court has held that it was proper to permit a witness to testify to the
statements of the prosecutrix made with regard to the occurrence, the details of the transaction, her nervous condition, and the swollen appearance and blood upon her wrist. The statement was made a few moments after the occurrence, and it was there said: “These statements of the prosecutrix, and her appearance and condition, were heard and seen by the witness in a very few minutes after the occurrence, and were res gestee.” Lights v. The State, 21 Texas Ct. App., 308.
In Lewis v. The State. 29 Texas Court of Appeals, 201, it is said by this court: “ In order to constitute declarations a part of the res gestee, it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of the principal fact, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence.” See also Foster v. The State, 8 Texas Ct. App., 248; Boothe v. The State, 4 Texas Ct. App., 202; Tooney v. The State, 8 Texas Ct. App., 452; Stagner v. The State, 9 Texas Ct. App., 441; Warren v. The State, Id., 619; Neyland v. The State, 13 Texas Ct. App., 536; Washington v. The State, 19 Texas Ct. App., 521; McInturf v. The State, 20 Texas Ct. App., 335; Pierson v. The State, 21 Texas Ct. App., 15; Smith v. The State, 21 Texas Ct. App., 277; Powers v. The State, 23 Texas Ct. App., 42; Irby v. The State, 25 Texas Ct. App., 203; Fulcher v. The State, 28 Texas Ct. App., 465; Craig v. The State, 30 Texas Ct. App., 619.
In Lewis’ case the conviction was for murder, and the statement of the deceased was made to two witnesses, at different times, from a half hour to one and a half hours after the occurrence; in Fulcher’s case the statement of the wounded party was made about thirty minutes after he was shot; and in both cases the statements were held to be res gestae. Lewis v. The State, 29 Texas Ct. App., 201; Fulcher v. The State, 28 Texas Ct. App., 465.
In this case the statements were made to the grandmother in a very few moments after the offense was committed, and within a very short distance of the scene of the crime, and to the witness Villareal in about a half an hour. The prosecutrix was a child of about 11 years of age, badly developed for her age, and at the time of making the statement suffering great pain; was torn, lacerated, and bleeding from the effects of the recent rape, and was scared and excited. Her statement was voluntary, and uninfluenced by persuasion, suggestion, or other influence or consideration. She stated no name, and in fact she did not know the name of the perpetrator of the outrage, but could and did give an accurate description of him. He was a stranger to her. Such facts and circumstances preclude the idea of fabrication, or deliberate design in making the statements. On the contrary, they were voluntary and spontaneous; as much
so as if uttered at the very time of the outrage. The statements were res gestae, and clearly admissible.
We have examined the other questions raised by counsel, but find no error in any of them. It is not necessary to discuss them. The charge was a clear presentation of the law of the case. The evidence discloses a most brutal assault upon a child, and a rape horrible in its details. Defendant sought to prove an alibi. His testimony was conflicting, and the witness introduced by him contradicted his individual testimony in every material aspect relating to the facts of the alibi. Defendant was positively identified by the prosecutrix as the perpetrator of the crime. Her testimony was strongly corroborated in every respect. If the witnesses testified truthfully in this case, defendant is guilty, and his conviction proper; and no discredit is thrown upon the evidence of the prosecution. As the record presents the case to us, the defendant has had a fair and impartial trial, and the judgment is affirmed.
Affirmed.
Judges all present aid concurring.